15
PROCTOR | March 2016
DVOs and family
law orders
Resolving conflicts in their relationship
This article examines the
relationship between domestic
violence orders1 and family
law orders.2
It looks at two facets of this relationship;
firstly, it examines the situation in which there
is an existing DVO and a subsequent family
law order is made that is inconsistent with the
DVO, and secondly, it sets out a magistrate’s
power, pursuant to s68R of the Family
Law Act 1975 (Cth) (FLA), to revive, vary,
discharge or suspend a family law order.
Family law order inconsistent
with an existing DVO
The relevant Queensland domestic violence
legislation is the Domestic and Family
Violence Protection Act 2012 (DFVPA), the
aim of which is to maximise the safety and
protection of people in relevant relationships
who fear or experience domestic violence.
For a Magistrates Court to make a protection
order under s37 DFVPA, it must be satisfied
of the following three elements on a balance
of probabilities:3
a. A relevant relationship exists between
the aggrieved and the respondent.
b. The respondent has committed domestic
violence against the aggrieved.
c. The protection order is necessary or
desirable to protect the aggrieved from
domestic violence.
A court may make a temporary protection
order if it is satisfied that (a) a relevant
relationship exists between the aggrieved
and the respondent; and (b) the respondent
has committed domestic violence against
the aggrieved.
4
If the court determines that a DVO is to be
made, the order must include a condition that
the respondent is of good behaviour towards
the aggrieved and does not commit domestic
violence against the aggrieved.5 A court
may impose any other condition it considers
(a) necessary in the circumstances and (b)
desirable in the interests of the aggrieved.6
For example, a court may make an order
prohibiting the respondent from approaching
or attempting to approach the aggrieved or
a named person.
7
Therefore, it is possible
that a DVO that names a child as a protected
person and prohibits the respondent from
approaching a named person, may conflict
with a family law order providing for contact
between the respondent and the child.
Inconsistencies between a DVO and
a family law order may be resolved by
reference to Division 11 FLA. Section
68N FLA sets out the purposes of Division
11 as being to resolve inconsistencies
between family violence orders8 and orders
made under Part VII FLA, to ensure that
orders do not expose people to family
violence and to achieve the objects and
principles in s60B FLA.
Section 68Q FLA confirms that, to the
extent of any inconsistency with orders
made under Part VII of the FLA, the family
violence order is invalid. In reality, a DVO that
names a child as a protected person and
prohibits the respondent from approaching
or contacting a named person usually
includes the proviso “except for the purpose
of having contact with children as set out in
a written agreement between the parties or
as permitted by an order made under the
Family Law Act”.
If the Family Court or Federal Circuit Court
makes an order for a child to spend time with
a person, and that order is inconsistent with
a DVO, a number of obligations are imposed
on the court.9 The court must specify that the
order is inconsistent with the existing family
violence order and give a detailed explanation
of how the contact that it provides for is to
take place.
It must also explain to all parties (family
law proceedings and domestic violence
proceedings), in a language those persons
are likely to understand, the purpose of the
order, the obligations created by the order,
the consequences of failing to comply with
the order, the court’s reasons for making
the order and the circumstances in which
a person may apply for a variation or
revocation or the order.
10
The court making the order must provide
a copy of the order as soon as practicable
after making it (but no later than 14 days after
making it) to all relevant people including:
the registrar of the court that made the
family violence order, the Commissioner of
the Queensland Police Service and a child
welfare officer.
11
If the court when making
the order fails to comply with this section,
the validity of the order is not affected.
12
A domestic violence order (DVO) may sometimes run contrary to a
subsequent family law order. Sarah Christie explains how this is resolved,
and also looks at a magistrate’s power to alter a family law order.
Family law
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